HKSAR v. HAU HOI TUNG

CACC 39/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 39 OF 2002

(ON APPEAL FROM DCCC 879 OF 2001)

______________

______________

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 4 January 2002, the Applicant, aged 27, was convicted of a residential burglary, following a trial in the District Court before Deputy Judge Livesey. Earlier, the Applicant had pleaded guilty to a further charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. The Applicant was sentenced to three years' imprisonment on the first charge and to a consecutive term of eighteen months' imprisonment on the second charge. The matter now comes before us as a renewal of the application for leave to appeal against his conviction for burglary and the sentence imposed on the immigration offence, the leave of the single judge having been refused on 7 May 2002.

Conviction

2. In his written grounds of appeal, the Applicant stated that as he had not committed the burglary in question, he felt aggrieved when he found that the judge had disbelieved his evidence.

3. In court today, he has repeated the same grievance.

4. The burglary involved property valued at over $17,000 which was easily recognisable. The burglary was discovered at about 3.15 a.m. on 24 August 2001 by the occupier of a house in Lantau. About five hours later, the Applicant was arrested in possession of all the stolen items. He remained silent when questioned about them.

5. The judge was presented with 'recent possession' evidence of the most straightforward kind. Having heard the Applicant's evidence, the judge summarised her assessment of him as a "totally dishonest and untruthful witness" whose evidence was "full of inconsistencies, contradictions and discrepancies". The judge found that it was quite clear that the Applicant had been making up a story.

6. No grounds have been advanced which would justify interference with the verdict on charge 1. The application in regard to conviction is without any substance and it is dismissed.

Sentence

7. In spite of the Applicant's complaint that he should have been treated more leniently on the second charge, the same assessment can equally be made of the sentence application. The judge pointed out that although fifteen months' imprisonment was an appropriate sentence for a first offender who pleaded guilty to an immigration charge such as this, in fact the Applicant had committed the same offence twice previously. She rightly commented that the Applicant had only five weeks before the present offences been released from custody after serving his sentence for an offence of the same kind.

8. A sentence of eighteen months would have been justified for a plea of guilty to a second offence of this kind and, for a third offence, there could have been no legitimate complaint to a sentence of twenty-one months' imprisonment where a plea of guilty had been entered. It follows that eighteen months was, if anything, a merciful sentence to have imposed.

9. This application is also dismissed.

Loss of time

10. There has been no merit whatever in either of these applications. Indeed, the Applicant was made aware of this when he appeared before the single judge and was warned of the possible consequence, in terms of loss of time, if he renewed his applications without good reason. In any event, the Applicant would have been well aware of this from the form he signed when making his application.

11. Accordingly, adopting the provision in section 83W of the Criminal Procedure Ordinance, Cap 221, we shall order that two months of the time the Applicant has spent in custody awaiting this hearing should not be reckoned as part of his sentence.